Book Review: The Challenge by Jonathan Mahler

Writing a book about a case that works its way to the U.S. Supreme Court poses inherent problems for an author. Perhaps the most difficult is putting the story in terms the average reader can understand while not bungling or giving too short shrift to legal complexities. This is especially so when the author is not law-trained and the case involves a variety of procedural machinations and areas of law with which most lawyers have little familiarity.

In what he calls “primarily a book of reporting,” Jonathan Mahler masters that fine line in The Challenge: How a Maverick Navy Officer and a Young Law Professor Risked Their Careers to Defend the Constitution–and Won. Mahler, a journalist, gives us an inside look at Hamdan v. Rumsfeld, the decision that found the military commissions established by the Bush Administration to try Guantanamo Bay detainees were illegal. Given that it explores a civil lawsuit from beginning to end, it isn’t the type of narrative that keeps readers on the edge of their seat. Yet Mahler creates a highly readable exploration of a landmark decision on presidential powers and the rule of law. In addition, the paperback edition released this week contains a new epilogue that brings readers up to date on what transpired after the Supreme Court’s ruling.

The story begins, of course, with Salim Ahmed Hamdan, a Yemeni who was recruited to jihad. Mahler gives the impression that Hamdan saw being a jihadist more as steady employment than a political or religious mandate. He did, though, end up being Osama bin Laden’s driver in Pakistan, where he was captured by local militia after the U.S. invasion. After being turned over to the U.S. military, he was held at Bagram Air Field in Afghanistan and a prison in Pakistan before being transferred to Guantanamo Bay in 2002. Although we get glimpses of Hamdan’s life at Guantanamo and his claims of abuse, the story is told more from the legal perspective and the two lawyers who led the legal efforts on his behalf.

Charlie Swift, a member of the Navy Judge Advocate General’s Corp (JAG), was assigned to the Office of Military Commissions in 2003. His job was to assist and defend detainees who would be tried in front of military commissions created by the Bush Administration for that purpose. Shortly after being assigned and before Hamdan became his client, Swift questioned the wisdom and legality of the commissions. Yet any challenge to them presented its own problems. How likely are military commissions to declare themselves illegal? But could a JAG officer sue the nation’s commander in chief?

Shortly after the defense unit was set up, Neal Katyal, then a law professor at Georgetown University, emailed the head of the unit. Katyal, the son of Indian immigrants, had co-authored a law review article on the presidential order establishing the commissions. He urged they be challenged in federal court and volunteered his assistance. After they met, Swift realized Katyal had knowledge, skills and tools he lacked to adequately and fully pursue a court challenge on his own.

The Challenge details the twists and turns in and roadblocks to the litigation. To begin with, because Guantanamo was in Cuba, there was serious question whether Hamdan could sue in the U.S. Once that hurdle was surmounted, there were questions about whether the courts should abstain until the commissions had actually heard cases and the extent of their power to review what a president has done in a time of war. While Swift continued to protect Hamdan’s interests on the military commission end, he and Katyal, with assistance from the Seattle law firm of Perkins Coie, filed suit in federal court in April 2004. They won at the trial court level in a ruling that exceeded their hopes. But in July 2005, a three-judge federal court of appeals panel reversed the decision. One of those judges was John Roberts. Four days after the ruling, Roberts was nominated by President Bush to become chief justice of the Supreme Court.

Getting the Supreme Court to hear a case is difficult any time. But the Hamdan case had even more roadblocks put in its path as Congress enacted legislation that sought to abolish jurisdiction over the proceeding. That forced Katyal to also wage a battle on the Congressional front. And perhaps demonstrating the government’s attitude toward detainees like Hamdan, when the Supreme Court ruled in Hamdan’s favor and Katyal and Swift went to meet with him at Guantanamo, they were told they couldn’t bring in a copy of the decision because the rules forbid bringing in outside information. It took 30 minutes of argument and a request to see a superior officer before Hamdan could actually see the written opinion in his own court case.

Mahler’s recounting of the road from Pakistan to the Supreme Court relies on hundreds of hours of interviews with Swift and Katyal (he was not permitted to interview Hamdan). The reader is not only taken inside their strategy but the differences of opinion on strategy, their personality and their personal lives. Yet Mahler avoids a simple dry recounting. We learn that due to a lawsuit after Katyal’s father lost his job, his parents had “a visceral hatred of lawyers.” Although the front man in the media, Swift is not portrayed as a Navy officer in shining armor but a man with an ego as well as attention deficit disorder. The Challenge also often reflects the differences between not only trial and appellate lawyers but also between legal academia and the real world. Thus, after Katyal enlisted some law students to help him draft the initial filing, Perkins Coie wanted it drastically rewritten because “it read more like a law review article than a legal action.” This would be a common theme as the case proceeded.

While the Supreme court decision established that military commissions must apply appropriate constitutional and legal procedures, it did not mean Hamdan was free. And while the initial book closes with Swift leaving the service because he was passed over for promotion twice while representing Hamdan (Katyal was named deputy solicitor general by President Obama in January 2009), the epilogue brings us up to date on Hamdan’s case. It details his trial in July and August 2008 before a military commission created by Congress that applied rules and procedures the Bush commissions did not. Although convicted, the military jury gave him a sentence only five and a half months longer than he had already been detained. Thus, in November 2008, Hamdan was put on a military plane and flown back to Yemen, where he served the last month of his sentence.

Thus, some seven years after being detained, Hamdan returned home. None of us will probably ever know the nature and extent of his involvement in al-Qaeda. What we do know is that the case that bears his name confirms what Swift told the Senate Judiciary Committee before it even reached the Supreme Court, the way we search for accountability “says as much about the society that holds the trial, as it does about the individual before it.”

“The rule of law is what I fight for,” [the Marine colonel] told Swift. “Don’t stop.”